October 07, 2008

In Real Truth About Obama, Inc. v. Federal Election Com’n, 2008 WL 4416282 (E.D.Va. 2008), the Court denied Plaintiff Real Truth About Obama, Inc.’s (“RTAO”) request for a preliminary injunction in its constitutional challenge to three federal regulations and to the FEC’s policy on determining Political Action Committee ("PAC") status. RTAO sought a preliminary and permanent injunction to enjoin the defendants, the Federal Election Committee (“FEC”) and the United State Department of Justice (“DOJ”), from enforcing the Federal Election Campaign Act ("FECA") as to RTAO and its activities, as well as other similarly situated entities. Finding that RTAO had failed to carry its burden of showing a likelihood of success on the merits and that the balance of harms and public policy considerations weighted in favor of the defendants, the Court denied the request for a preliminary injunction.

RTAO is a non-profit Virginia corporation organized under 26 U.S.C. § 527 to inform the public about Barack Obama’s public policy positions on abortion. RTAO alleged that its activities and the amounts it would spend would trigger 11 C.F.R § 100.22, 11 C.F.R § 100.57, and would cause it to be deemed a PAC by the FEC (the “major purpose” test) which RTAO asserted would chill its rights because of the unconstitutionality of these provisions. RTAO also alleged that the FEC’s definition of “express advocacy” was overbroad and therefore would restrict RTAO under 11 C.F.R § 114.15 which it alleged was also unconstitutional. RTAO argued that the regulations and enforcement policy should be set aside under the Administrative Process Act and asked for a preliminary injunction to prevent the FEC and DOJ from enforcing the challenged provisions against them.

After finding that RTAO did in fact have standing to bring such claims, the Court evaluated RTAO’s claims against the four-factor framework for a preliminary injunction. The Court wrestled with the order in which to address the factors and weight to be given to each, but cited prior precedent that when the irreparable harm alleged is intertwined with an alleged violation of First Amendment rights, likelihood of success on the merits is the first and most important factor to review The Court evaluated each of the four constitutional challenges on the merits and found that because the regulations and policy at issue were consistent with Supreme Court and other case law, they were not unconstitutional and RTAO was unlikely to succeed on the merits of their claims. The Court also held that because RTAO was free to express any message it wished and the only limitation was on their contributions there was no irreparable harm to RTAO. Lastly, the Court held that the balance of harms and the public policy considerations, such as the deregulation of election law, weighed in favor of the defendants. As a result, the preliminary injunction motion was denied.